- If I had a dollar for every time someone asked me
if their logo was a trademark or copyright,
I would have a lot of dollars.
Don't go anywhere 'cause I'm about to tell you
why your logo is probably just a trademark
and give you a few perfect examples of when something
can be both a trademark and a copyright at the same time.
(upbeat music)
(letters clicking)
(arrow whooshing)
(logo flapping)
Hi, everyone, I'm attorney Aiden Durham with 180 Law Co.
in Colorado, and you are watching All Up In Yo' Business.
Before we get into trademark versus copyright
and when something can be both,
don't forget to check the description
for links to additional information and resources,
and of course be sure to like, subscribe and share.
So just a quick refresher.
What's a trademark? What is a copyright?
Trademarks apply to source indicators or brand indicators.
Typically, these are things like business names,
business logos, things that are used in trade,
things that are used typically by a business
to indicate the source of goods or services.
Copyrights, on the other hand, protect works of creativity,
expressions of art, things like photographs,
movies, music, painting, sculptures,
anything that has some artistic and creative element to it.
I've done a lot of videos about trademarks and copyrights,
and I try to explain when one is one thing or the other,
but it still comes up.
People still get pretty confused about when something
might fall under trademarks versus copyrights.
And this comes up really often with logos because,
of course, typically a logo
is gonna have some creative element behind it,
some design element behind it.
But just because there's a little bit of a design,
maybe stylized text or some shapes or an image,
doesn't necessarily mean that it's protected by copyright.
So I've been trying to figure out the best way
to demonstrate when does a copyright apply to a logo,
and then, just like magic, the skies opened up
and the intellectual property gods shined upon me
and on my doorstep was the perfect thing.
Ladies and gentlemen, I present to you
this box from Cat Person.
Just as a quick note,
I have zero affiliation with Cat Person.
I am a cat person myself, but this isn't a sponsored video.
I'm not getting paid to talk about this.
I'm doing this completely on my own volition
because this is perfect.
So Cat Person is a company that sells cat food, primarily.
I was looking for some real food solutions
for what I could feed my cat Bird.
Yes, I have a cat named Bird, Little Bird actually,
but Bird for short.
And I stumbled upon Cat Person.
They sell cat food and cat toys and other cat stuff
for cat people like me, and their product
comes in this box with this adorable drawing
on every side of it of, what else, cat people,
or people holding cats.
Now this, my friend, is a fantastic example
of when something can be both a trademark and a copyright,
or not a copyright but protected by copyright.
So why copyright?
Copyrights protect works of creativity,
artistic expressions, drawings, paintings, things like that.
This is a drawing.
Somebody somewhere drew this,
and assuming it's an original expression of this artwork,
it would be protected by copyright.
But Cat Person also uses it on their packaging
to indicate the source of their goods and services.
And that is a trademark, probably.
I mean, whether they intend for it to be a trademark,
buh, I'm guessing they do.
I don't think they have a trademark registration for it.
Their name, which is also on the box, Cat Person,
this is definitely a trademark.
I'm gonna venture to guess that this design,
this packaging, would also fall
under being considered a trademark
because it's used to indicate the source
of their products or services.
When you see this drawing on a box,
after you've ordered cat stuff,
you can assume it came from Cat Person.
So now the question is, how does this work?
How does the copyright apply versus the trademark?
So as a copyright, it's literally whoever drew this,
whoever the author or the owner is,
I'm assuming it's Cat Person, the company,
but I don't know for sure, whoever created this
owns the copyright in this drawing.
Just by drawing it, it doesn't make it a trademark.
What makes it a trademark is how they're using it.
So where the copyright applies, I or nobody else
would be able to copy this drawing and stick it on a shirt
and sell it, or make prints of this exact drawing
and sell it for my own profit or my own good.
The owner of the copyright is the only person
who has the right to copy this drawing.
Now, of course, that doesn't mean
I can't draw my own picture of people holding cats.
Certainly I can.
This doesn't prevent the rest of us from painting a picture
of a bunch of people standing holding cats.
We can't recreate this exact photo
or reprint or copy this exact photo,
but we can make whatever we want with people and cats,
as long as it's not this exact photo.
Where the trademark applies, however,
is how they're using it.
So not only would I not be able
to start my own cat food company or cat toy company,
or probably anything related to cats,
probably anything related to pets, actually,
but anyway, I wouldn't be able
to start my own pet food company, and of course
I can't use this same design on my packaging,
but I also might have a hard time using any kind
of similar drawing of people holding cats on that packaging
because that could potentially cause confusion
as to the source of those products.
I imagine Cat Person wants it so that, when you see this box
with people holding cats on it, you'll think of Cat Person.
If I create some kind of similar drawing
and stick it on my packaging, people might get confused.
And that's where the trademark applies, not the copyright.
The copyright applies specifically to this picture,
and trademarks only apply when it's being used
as a trademark, and it applies
to any confusingly similar use of this design.
Now, of course, I don't know that we would call this a logo.
A logo is not really a technical trademark term.
It's a design mark. It might, it might be a trade dress.
I don't know. I don't do a whole lot of work in trade dress.
I would have to research it some more.
But it's a design mark is the point.
And so, these same rules, the same thought
applies to logos, which are design marks.
What's also interesting is that their box,
you can turn it into a toy.
You fold some things, rip some pieces apart,
stick some things into the box, and it becomes a thing
that your cat can sit in and play with the toys.
I'll tell you guys, Bird freaking loves it.
She sits in it all the time.
Now, whether or not that might be considered a trademark,
the design of this package, so to create a cat toy,
essentially, there might be too much function behind it.
Mm, maybe I'm gonna lean more towards no,
that that's not a trademark, but it certainly is neat.
I'd also like to draw your attention to the shirt
that I'm wearing, which has this awesome
Rocky cartoon photo on it.
Now, no, this isn't just a shameless plug
for my Jalapeno Business merch, which you can take a look at
in the little merch tab below this video
and in the link in the description,
if you want to rock your own Jalapeno Business merch,
but that's not what this is about, you guys.
So I took a photo of Rocky.
By taking that photo, that photo is protected by copyrights,
which I own because I took the photo.
I then found a guy on Fiverr
to make a cartoon drawing of that Rocky photo,
and because of the terms of the agreement
between me and this guy through Fiverr,
I also own the copyright in that
because, by creating a cartoon of it,
this cartoon drawing of Rocky itself
is also protected by copyright.
And doing those things didn't make it a trademark.
It didn't make it my logo.
What made it a trademark is when I put it
on the banner of my YouTube channel
or on the banner of my merchandise store,
so to indicate the source of my YouTube videos.
So when you see Rocky's adorable cartoon face,
you know you're on All Up In Yo' Business
and you're about to watch my sweet videos.
And so, again, just like that Cat Person drawing,
nobody else, without my permission at least,
can put this Rocky photo on anything.
Someone can't print this out
and sell adorable cartoon portraits of Rocky
because I own the copyright in it.
I'm the only one with the right to copy it.
But once I started using it as a trademark,
it also became a trademark.
And so, when people come to me asking if their logo
falls under trademarks or copyrights, 99% of the time,
if not 99.999% of the time, it's just a trademark.
There has to be some creative expression behind it,
which typically you don't see in most logos.
Every once in a while, we do.
Let's say the KFC logo that has the colonel in it,
that photo of the colonel is protected by copyright.
But the entire thing, itself, is a logo
protected by trademark law.
Now where the line is between
when is something creative enough
to be protected by copyright, it's hard to say.
The official rule is there has to be some minimal level
of creativity, something like that.
It's low, it's a low bar for what's protected by copyright.
But typically, when we're talking logos,
even if a copyright does apply, if it's not totally clear,
we know at least that trademarks do apply.
Because if you're using it as a trademark,
then it's going to be considered a trademark.
It doesn't matter what it looks like
or how much creativity is behind it.
The point is that we're using it
as a trademark versus the copyrights
where there has to be some minimum level of creativity.
If you just have your business name
written out in some stylized format,
maybe you have some really pretty text and colors in it,
that isn't, in most cases, gonna be creative enough
to fall under copyright.
And if you're on the fence about it,
if your logo falls under trademark or copyright,
lean more towards trademark because that's what it is.
And so, we want to protect it as a trademark.
Because, again, copyrights just protect the right to copy,
whereas trademarks protect the right to use this thing
in trade to signify or indicate the source
of your goods or services.
So let's look at it all one more time.
Cat Person. Trademark.
Drawing of cat people. Copyright, initially.
Once stuck to the packaging and used by Cat Person.
Trademark and copyright.
Adorable drawing of cartoon Rocky. Copyright.
Once it's created. Copyright.
This entire design with the coloring behind it,
"All Up In Yo' Business" below it.
Initially nothing.
But once I started using it on my YouTube channel
and on my merchandise store and in connection
with the things I'm providing, then it became a trademark.
I hope that helps clear some things up for you guys
about trademarks versus copyrights.
I was just really excited when that Cat Person box
landed on my doorstep
'cause it was just the perfect thing.
My intellectual property brain just exploded with happiness.
Seeing, look at this, look at this design
which someone owns a copyright in it.
Ooh, and look how they're using it.
It's a trademark too. Uh, what a great day.
That's all for this episode, folks.
Drop a comment below. Let me know what you think.
And again, don't forget to check the description
for links to additional information and resources,
or if you want to pick up your own super cute, amazing
All Up In Yo' Business Rocky cartoon shirt
or other merchandise that I had, you can check it out there.
But again, you guys, that's not the point.
Thank you all so much for watching.
I'm Aiden Durham and I'll see you next time.
♪ Oh, oh, oh, oh, oh, oh, oh ♪
♪ Oh, oh, oh, oh, oh, oh, oh, oh, oh ♪
♪ Oh, oh, oh, oh, oh, oh, oh, oh ♪
♪ Oh, oh, oh, oh, oh, oh, oh, oh, oh, oh ♪
♪ Oh, oh, oh, oh, oh ♪